Gooden v. County of Los Angeles ( 2024 )

Filed 10/24/2024
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOHN M. GOODEN, B326446
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCP01784)
THE COUNTY OF LOS
ANGELES, et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin Brazile, Judge. Affirmed.
Robert S. Gerstein for Plaintiff and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication as to all parts
except Part II of the Discussion.
Office of the County Counsel, Dawyn R. Harrison, County
Counsel, Starr Coleman, Assistant County Counsel, Kathy H.
Park, Deputy County Counsel; The Sohagi Law Group, Margaret
M. Sohagi, R. Tyson Sohagi, and Mark J.G. Desrosiers for
Defendants and Respondents.
******
Under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.),1 a public agency must
prepare an environmental impact report if any project it is
contemplating—which can include amendments to a local
government’s general plan for land use—“may have a significant
effect on the environment.” (§§ 21100, subd. (a), 21151, subd. (a);
Cal. Code Regs., tit. 14, § 15064, subd. (a)(1).) The primary
purpose of this report is informational—that is, “to give the
public and government agencies [contemplating the project] the
information needed to make informed decisions.” (In re Bay-
Delta etc. (2008) 43 Cal.4th 1143, 1162 (Bay-Delta).) But what if
the public agency, prior to certifying the environmental impact
report, ultimately takes action in a manner that deviates from
the project described in that report? Does that deviation
undermine the informational value of the previously circulated
report and, if so, what remedy does CEQA demand? We hold that
CEQA contemplates three possible outcomes in this scenario. If
the deviation alters the very “nature of the project” and its “main
features,” the deviation retrospectively renders inaccurate and
unstable the definition of the project previously set forth in the
report, thereby necessitating a new report to evaluate what is
1 All further statutory references are to the Public Resources
Code unless otherwise indicated.
2
effectively a new project. If the deviation is less extreme, but
increases the project’s adverse environmental impact by adding
“significant new information” for consideration, the public agency
must recirculate for further public comment an amended version
of the pertinent portions of the previously circulated report. And
if the deviation does not trigger either of these duties, no further
action is required.
In this case, a county circulated an amended land use plan
for an unincorporated mountainous region that contemplated
continued heavy regulation of vineyards in that region, but the
county board ultimately imposed a ban on new vineyards. We
conclude that this deviation did not alter the very nature of the
plan amendment or its main features, and that the vintner
challenging the county board’s action waived any request for
recirculation. We accordingly affirm the trial court’s denial of the
vintner’s petition for a writ of administrative mandamus.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The Santa Monica Mountains North Area
The Santa Monica Mountains North Area is an
approximately 21,000-acre area of land in an unincorporated
portion of northwestern Los Angeles County in the Santa Monica
Mountains—one of the County’s “most significant ecological and
scenic resources.”
The County regulates land use in the North Area pursuant
to (1) the North Area Plan, which was first adopted in October
2000 as a part of the County’s General Plan and serves as a
“planning tool” with “area-specific policies,” and (2) the
Community Standards District, which was first adopted in
3
October 2002 and serves as a “zoning overlay” within the County
Code to implement the policies of the North Area Plan.
B. Land uses within the North Area, including
vineyards
The North Area enjoys a “long history as a rural setting.”
Most of the North Area—16,514 acres—constitutes open space,
while 4,170 acres are designated for commercial, public, and
residential uses. Only around 100 acres are used for agriculture,
which predominantly consists of vineyards along Mulholland
Highway and Kanan Dume Road, as well as in Triunfo Canyon.
The North Area’s southern boundary stops five miles from
the coast because the California Coastal Commission regulates
the land within five miles of the coastline. In October 2014, the
California Coastal Commission certified a Local Coastal
Program—which consists of land use plans and zoning
ordinances—for the five miles of land adjacent to the North
Area.2 Among other things, the Local Coastal Program
prohibited any new vineyards within its boundaries; according to
the staff report submitted in support of the ban, this ban was
necessary due to the “adverse impacts attributed” to the
operation of vineyards, “including increased erosion from removal
of all vegetation, use of pesticides, large amounts of water
2 A group of landowners in the area governed by the Local
Coastal Program unsuccessfully litigated several challenges to
the certification. (See Mountainlands Conservancy, LLC v.
California Coastal Com. (2020) 47 Cal.App.5th 214.)
We reject the County’s assertion in its briefing that the
trial court should have augmented the record in this case to
include a study contained in the record of the litigation regarding
the Local Coastal Program. The County did not file a cross-
appeal.
4
required, their invasive nature, and their adverse impact to
scenic views.”
Shortly thereafter, in December 2015, the County’s Board
of Supervisors (the Board) adopted an ordinance specifically
regulating vineyards in the North Area. The 2015 ordinance
obligated anyone seeking to open a new vineyard or to expand an
existing vineyard to obtain a conditional use permit; it also
established development standards for all vineyards—existing or
new—to address the potential environmental impacts caused by
the “proliferation of vineyards” in the North Area.
C. The project
In April 2016, the Board voted to undertake a
“comprehensive update” to the North Area Plan and to the
Community Standards District. This update implicated CEQA.
The Board described the “project” to be undertaken as an update
“to provide greater protection of biological habitats, align Plan
and [Community Standards District] policies and standards with
the [Local Coastal Program], support the rural and semi-rural
character of the [North Area], and bring the land use policies for
the North Area into compliance with the General Plan.” The
update would result in a corresponding “replace[ment]” to
pertinent zoning provisions in the County Code and a rezoning of
hundreds of parcels. In other words, the project did “not include
any physical development”—instead, it “identifi[ed] land use
policies and development standards” for the North Area.
1. Draft environmental impact report
The County issued a draft environmental impact report for
the project in May 2020. The draft report identified several key
revisions to the North Area Plan and the Community Standards
District, including:
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● Adopting various development standards to protect
sensitive biological resources, habitats, and scenic attributes;
● Imposing new permit requirements when protected trees
are affected by development;
● Setting standards for equestrian facilities;
● Limiting the use of event facilities;
● Establishing noise levels; and
● Imposing new permit requirements for grading projects.
As for viticulture, the draft proposed reducing the
minimum threshold for when the growth of grapes would be
considered a “vineyard” subject to the more stringent
development standards in the 2015 ordinance; the draft also
added standards for integrated pest management. There was no
proposed ban on new vineyards.
The County received almost 100 comments to the draft
report, with several voicing “support” of a “complete” “ban” on
vineyards “in the same fashion as in the Local Coastal Program.”
2. Final environmental impact report
The final environmental impact report was issued in
September 2020 with some changes. The final report did not
propose a vineyard ban; instead, the County responded to the
comments urging a ban by explaining that the existing
regulations governing “development standards” for vineyards
sufficed to “ensure that environmental impacts are minimized.”
Following a hearing on October 7, 2020, the County’s
Department of Regional Planning recommended that, with a few
minor modifications, the Board certify the final environment
impact report, approve the updates to the North Area Plan and
Community Standards District, and adopt an ordinance
amending the pertinent provisions of the County Code.
6
3. Certification
The Board convened a public meeting on November 4, 2020
to consider the recommendation. At the conclusion of the
meeting, the Board “indicate[d] its intent to certify” the final
report, approve the updated plan, and amend the County Code.
But the Board made one change pertinent to this appeal:3
“[P]rohibit new vineyards of any size.”
After soliciting and receiving written comments regarding
the proposed ban on new vineyards, the Board held another
public meeting on May 4, 2021 and voted unanimously to certify
the report, approve the updated North Area Plan and Community
Standards District, and adopt the ordinance amending the
pertinent provisions of the County Code. The vineyard ban is
reflected in section 22.336.070, subdivision (Y)(1)(a) of the County
Code and states: “All new vineyards, regardless of size, shall be
prohibited in this [Community Standards District].”
II. Procedural Background
The Malibu Coast Vintners and Grape Growers Alliance,
Inc. (the Alliance) and one of its members, a vintner named John
Gooden (Gooden), filed a petition for a writ of mandate on June 2,
2021. The Alliance and Gooden had submitted comments during
the CEQA proceedings opposing a vineyard ban. The writ
petition challenged the Board’s action banning all new vineyards
in the North Area Plan as violating (1) CEQA’s requirements that
(a) the project have an accurate and stable description and (b) the
report be recirculated when significant new information is added;
and (2) Government Code section 65857’s requirement that the
3 The Board identified a handful of other changes that are
not at issue here.
7
Board remand the new ban proposal for consideration by the
Department for Regional Planning.4
Following a full round of briefing and a hearing, the trial
court issued an order on November 14, 2022 denying the writ
petition.
Following the entry of judgment for the County and the
Board, the Alliance and Gooden appealed. The Alliance
abandoned the appeal, leaving only Gooden to pursue it.
DISCUSSION
Gooden argues that the County (1) violated CEQA by
certifying the report and approving the project, and (2) violated
Government Code section 65857 by amending the County Code.5
Because Gooden challenged the County’s action with a petition
for a writ of administrative mandamus, our task is to assess
whether the pertinent agency—here, the County through its
Board—has committed a “prejudicial abuse of discretion,” which
exists when the agency “has not proceeded in the manner
required by law” or the agency’s “findings are not supported by
the evidence.” (Code Civ. Proc., § 1094.5, subd. (b); Banning
Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th
918, 935 [applying this standard in writ review of CEQA-based
4 The writ also challenged the Board’s action as contrary to
the County’s general plan, as arbitrary and capricious, and as
denying equal protection, but those theories have all been
abandoned on appeal.
5 Gooden argues that the County also violated one of its Code
provisions containing the same language as Government Code
section 65857, but it appears that the County Code provision
Gooden cites is inapplicable to the project at issue in this case.
(See L.A. County Code, § 22.232.040, subd. (B)(2)(a).)
8
claim].) As pertinent here, our task in reviewing the trial court’s
denial of the writ is to “step into the trial court’s shoes” and
independently examine for ourselves whether the agency acted
properly. (Gonzales v. California Victim Compensation Bd.
(2023) 98 Cal.App.5th 427, 441; Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40
Cal.4th 412, 427 [applying this standard in writ review of CEQA-
based claim].) We independently review any subsidiary legal
questions, including the meaning of statutes. (John v. Superior
Court (2016) 63 Cal.4th 91, 95-96; City of San Diego v. Board of
Trustees of California State University (2015) 61 Cal.4th 945,
956.) The burden of demonstrating a prejudicial abuse of
discretion rests on the party challenging the agency’s action.
(Southwest Regional Council of Carpenters v. City of Los Angeles
(2022) 76 Cal.App.5th 1154, 1172 (Southwest Regional).)
I. CEQA
Gooden argues that the Board’s action in enacting a total
ban on new vineyards retroactively renders “unstable” the
definition of the “project” set forth in the previously circulated
draft and final environmental impact reports. The County
responds that the Board’s action at most called for recirculation of
that portion of the report pertaining to agricultural land use
within the North Area, but that Gooden has abandoned on appeal
any claim for recirculation. To evaluate these arguments, we
must examine CEQA generally, the CEQA requirement that an
environmental impact report set forth an “accurate, stable and
finite” project description, and the CEQA threshold for
recirculation of environmental impact reports.
9
A. The pertinent law
1. CEQA, generally
CEQA is designed “‘to “[e]nsure the long-term protection of
the environment shall be the guiding criterion in public
decisions.”’” (Friends of College of San Mateo Gardens v. San
Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944,
quoting No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,
74.) CEQA operates, not by dictating pro-environmental
outcomes, but rather by mandating that “decision makers and the
public” study the likely environmental effects of contemplated
government actions and thus make fully informed decisions
regarding those actions. (Neighbors for Smart Rail v. Exposition
Metro Line Construction Authority (2013) 57 Cal.4th 439, 447;
Bay-Delta, supra, 43 Cal.4th at p. 1162; Cal. Code Regs., tit. 14, §
15002, subd. (a)(1); accord, Vedanta Society of So. California v.
California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 730 [“Projects
which significantly affect the environment can go forward, but
only after the elected decisionmakers have their noses rubbed in
those environmental effects, and vote to go forward anyway,”
italics omitted].)
The mechanism for that study is the environmental impact
report: Where a public agency contemplates a “project”—which
includes, among other things, the adoption or amendment of a
land use plan (e.g., Cal. Code Regs., tit. 14, § 15378, subd.
(a)(1))—and where that project “may have a significant effect on
the environment,” the agency must prepare an environmental
impact report analyzing those effects, and must circulate that
report to the public (to obtain comments) and to the agency’s
decisionmaking body (to ensure its decision is an informed one).
(§§ 21100, subd. (a), 21061, 21151, subd. (a); Cal. Code Regs., tit.
10
14, §§ 15064, subd. (a)(1), 15362; Tiburon Open Space Committee
v. County of Marin (2022) 78 Cal.App.5th 700, 725 (Tiburon).)
2. CEQA’s requirement that the description of the
project in the report be “accurate, stable and finite”
An “indispensable component” of an environmental impact
report is an accurate description of the project at issue. (Western
Placer Citizens for an Agricultural & Rural Environment v.
County of Placer (2006) 144 Cal.App.4th 890, 898 (Western
Placer); South of Market Community Action Network v. City and
County of San Francisco (2019) 33 Cal.App.5th 321, 332 (South of
Market).) Indeed, courts have repeatedly and uniformly
characterized “[a]n accurate project description” as “the ‘sine qua
non’ of an informative and legally sufficient [environmental
impact report].” (Southwest Regional, supra, 76 Cal.App.5th at p.
1173; Save Our Capitol! v. Department of General Services (2023)
87 Cal.App.5th 655, 673 (Save Our Capitol!); The Claremont
Canyon Conservancy v. Regents of University of California (2023)
92 Cal.App.5th 474, 482 (Claremont Canyon); Tiburon, supra, 78
Cal.App.5th at p. 738; South of Market, at p. 332;
stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39
Cal.App.5th 1, 17 (stopthemillennium); Citizens for a Sustainable
Treasure Island v. City and County of San Francisco (2014) 227
Cal.App.4th 1036, 1052 (Treasure Island); San Joaquin Raptor
Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645,
655 (San Joaquin Raptor); Western Placer, at p. 898; City of
Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454
(City of Santee); Dusek v. Redevelopment Agency (1985) 173
Cal.App.3d 1029, 1040 (Dusek); County of Inyo v. City of Los
Angeles (1977) 71 Cal.App.3d 185, 193 (County of Inyo).) This
characterization makes sense: The whole point of an
11
environmental impact report is to give the public and
decisionmakers sufficient information about the impact of the
project at issue to make an “intelligent evaluation” of those
impacts, so the report must adequately describe what that project
is in the first place. (Save Our Capitol!, at p. 673; cf. County of
Inyo, at p. 192 [a “curtailed or distorted project description may
stultify the objectives of the reporting process”].)
Courts have thus uniformly demanded that the description
of a project in an environmental impact report be “accurate,
stable and finite.” (Claremont Canyon, supra, 92 Cal.App.5th at
p. 482; Save Our Capitol!, supra, 87 Cal.App.5th at pp. 668, 673;
Southwest Regional, supra, 76 Cal.App.5th at p. 1173; Buena
Vista Water Storage Dist. v. Kern Water Bank Authority (2022) 76
Cal.App.5th 576, 588 (Buena Vista); stopthemillennium, supra, 39
Cal.App.5th at p. 17; Tiburon, supra, 78 Cal.App.5th at p. 738;
South of Market, supra, 33 Cal.App.5th at p. 332; Washoe
Meadows Community v. Department of Parks & Recreation (2017)
17 Cal.App.5th 277, 281 (Washoe Meadows); Treasure Island,
supra, 227 Cal.App.4th at p. 1052; Communities for a Better
Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 80
(Communities); San Joaquin Raptor, supra, 149 Cal.App.4th at p.
655; Western Placer, supra, 144 Cal.App.4th at p. 898; City of
Santee, supra, 214 Cal.App.3d at p. 1454; Dusek, supra, 173
Cal.App.3d at p. 1040; County of Inyo, supra, 71 Cal.App.3d at p.
193.) This means that the description must set forth “‘the
entirety of the project’” (Tiburon, at p. 738, quoting South of
Market, at p. 332; San Joaquin Raptor, at p. 654), and, as to that
entirety, must describe both the “‘nature of the project’” and its
“‘main features’” (Tiburon, at pp. 738-739, quoting South of
Market, at p. 332 and Dry Creek Citizens Coalition v. County of
12
Tulare (1999) 70 Cal.App.4th 20, 28 (Dry Creek Citizens); Save
Our Capitol!, at p. 674; Southwest Regional, at p. 1173; Treasure
Island, at pp. 1052, 1055; Communities, at p. 84). The
regulations that function as CEQA’s so-called “guidelines” specify
that a report’s project description must accordingly include (1)
“[t]he precise location and boundaries of the proposed project” on
a map, (2) “[a] statement of the objectives sought by the proposed
project,” (3) “[a] general description of the project’s technical,
economic, and environmental characteristics,” and (4) “[a]
statement briefly describing the intended uses of the
[environmental impact report].” (Cal. Code Regs., tit. 14, §
15124.) The description need not include every detail: The CEQA
guidelines eschew “extensive detail beyond that needed for
evaluation and review of the environmental impact” (ibid.), and
courts have never required the inclusion of information that is
not “reasonably feasible” for the agency to obtain and provide
(Southwest Regional, at p. 1173; Claremont Canyon, at p. 483).
By obligating public agencies to prepare and circulate
environmental impact reports, to solicit comments, and then to
respond to that feedback, CEQA necessarily contemplates that
public agencies may opt to alter projects in response to feedback
and thus to adopt projects that deviate from what was described
in prior environmental impact reports. If any and every deviation
rendered the description of projects in previously circulated
environmental impact reports retroactively inadequate or
unstable, public agencies would have a strong disincentive ever to
deviate from a project as originally articulated. This would
“freeze” projects “in the precise mold of the initial project”
(County of Inyo, supra, 71 Cal.App.3d at p. 199; Save Our
Capitol!, supra, 87 Cal.App.5th at p. 673) and “handcuff
13
decisionmakers” to the project as initially described (Dusek,
supra, 173 Cal.App.3d at p. 1041; South of Market, supra, 33
Cal.App.5th at p. 336). This is not in the spirit of CEQA, for it
would prompt agencies to ignore helpful or enlightening public
feedback—a result at odds with the entire purpose of the
information exchange triggered by CEQA’s environmental impact
report procedures.
In threading the needle between ensuring that a project’s
description is accurate, stable and finite while also not robbing
public agencies of the flexibility needed to tailor projects in
response to feedback, courts have defined when a public agency’s
adoption of a project that deviates from the project’s description
in a prior environmental impact report renders that description
inadequate and unstable. That occurs when deviation is so great
that the earlier project description likely “mis[led]” the public and
“thwarted the public’s ability to participate in the process and
comment meaningfully on the [environmental impact report].”
(Save Our Capitol!, supra, 87 Cal.App.5th at p. 674; San Joaquin
Raptor, supra, 149 Cal.App.4th at p. 656; see Washoe Meadows,
supra, 17 Cal.App.5th at p. 290 [deviation means that prior
description was an “obstacle” to meaningful public comment].)
Courts have identified three scenarios in which a public
agency’s project description may be inadequate or unstable:
● When the environmental impact report does not
actually describe the “project” at all. When a report sets forth five
“dramatically different” potential projects across a “broad range”
of possibilities that have “vast[ly]” “different[]” environmental
impacts, and does not designate any of them as the project being
considered, there is no “adequate” or “stable” project description.
(Washoe Meadow, supra, 17 Cal.App.5th at pp. 281, 288-290.)
14
However, where a report defines the overall parameters and
“footprint” for a specific project such as a mixed-use commercial
and residential project, but also includes variants for that project
proposing different percentages of the mix between the two uses,
the description is stable and the inclusion of those variants does
not render the description unstable. (Southwest Regional, supra,
76 Cal.App.5th at p. 1179 [so holding]; South of Market, supra, 33
Cal.App.5th at pp. 332-336 [same].)
● When the environmental impact report’s description of
the nature of the project or its main elements is too amorphous.
When a report describes a hotel construction project but omits
“any description or detail regarding what [the developer]
intended to build” beyond “different conceptual scenarios,” the
project description is unstable. (stopthemillennium, supra, 39
Cal.App.5th at pp. 7-8, 18.) However, when the project
description gives as much detail as can be provided at the time,
there is no instability. Thus, the 20-year, “long-range
development plan” at issue in Treasure Island, supra, 227
Cal.App.4th 1036 was not unstable merely because it did not
include details that “[did] not [yet] exist.” (Id. at pp. 1052-1055.)
And the project to clear brush in Claremont Canyon, supra, 92
Cal.App.5th 474, and the project to extract up to a specific
quantity of water in Buena Vista, supra, 76 Cal.App.5th 576,
were not unstable merely because the public agencies did not
include which trees would be cut down and precisely how much
water would be extracted when the descriptions explained how
those determinations would later be made. (Claremont Canyon,
at pp. 484-490; Buena Vista, at p. 590.) The goal is “adequacy,”
not “perfection.” (Claremont Canyon, at p. 483.)
15
● When the environmental impact report’s description of
the nature of the project or its main elements is self-contradictory
or inconsistent with later articulations. When a report gives
“conflicting signals” about a project’s contours (Treasure Island,
supra, 227 Cal.App.4th at p. 1052), the project description may be
unstable and inadequate—if those inconsistencies go to the
nature of the project or its main elements. Thus, in County of
Inyo, supra, 71 Cal.App.3d 185, the environmental impact reports
inconsistently described the project as drawing water from a
lakebed to service the local community and as extracting water to
service the greater Los Angeles basin as well as installing a
pipeline to transport that water; the conflicting project
descriptions in those reports were “unstable.” (Id. at pp. 190,
198-199.) In Save our Capitol!, supra, 87 Cal.App.5th 655, the
environmental impact reports inconsistently described a remodel
to the State Capitol Building as involving disparately different
exterior design aesthetics; the conflicting project descriptions—at
least in the context of a “historical resource” where “aesthetics” is
key—rendered the project description “unstable.” (Id. at pp. 675-
676.) In San Joaquin Raptor, supra, 149 Cal.App.4th 645, the
draft environmental impact report inconsistently described the
project as having “no increases in mine production” and also
“provid[ing] for substantial increases in mine production”; the
conflicting project descriptions were “unstable.” (Id. at pp. 654-
657.) In City of Santee, supra, 214 Cal.App.3d 1438, the report
and early action by the public agency referred to the temporary
expansion of a prison as being indefinite in duration or at most
three years, while the public agency ultimately approved a
duration of seven years; the conflicting project descriptions
regarding the duration of the expansion—which would have a
16
direct bearing on its environmental impact—were unstable. (Id.
at pp. 1451, 1454-1455.) And in Communities, supra, 184
Cal.App.4th 70, the reports regarding new construction at an oil
refinery inconsistently described the type of crude oil the refinery
would process; the conflicting project descriptions were unstable.
(Id. at pp. 80-85.) However, where the description of what would
be processed at a new oil refinery was consistent in Rodeo
Citizens Assn. v. County of Contra Costa (2018) 22 Cal.App.5th
214, 220-225, the project description was sufficiently stable.
As these examples illustrate, the instability of a project’s
description can arise (1) from inadequacies in the environmental
impact reports (e.g., San Joaquin Raptor, supra, 149 Cal.App.4th
at pp. 654-656 [conflicting statements in various reports]), or (2)
from subsequent action by the public agency that deviates
sufficiently from the project described in the reports that the
deviation retroactively renders those reports’ description(s)
uncertain and hence unstable (e.g., Southwest Regional, supra, 76
Cal.App.5th at pp. 1167, 1182; Save Our Capitol!, supra, 87
Cal.App.5th at pp. 674-676).
“Whether [an environmental impact report] contains an
accurate and stable project description is a question of law
subject to de novo review.” (Save Our Capitol!, supra, 78
Cal.App.5th at p. 673; Tiburon, supra, 78 Cal.App.5th at p. 738;
South of Market, supra, 33 Cal.App.5th at p. 332;
stopthemillennium, supra, 39 Cal.App.5th at p. 16.) This
standard of review dovetails neatly with the standards of review
for CEQA review more generally: “An agency’s failure to provide
an accurate, stable, and finite project description is a failure to
proceed in a manner required by law” (Buena Vista, supra, 76
Cal.App.5th at p. 588), and appellate courts independently review
17
whether an agency failed to proceed in a manner required by law
(City of Hayward v. Trustees of California State University (2015)
242 Cal.App.4th 833, 839).
Because, as pertinent here, a project description will be
found unstable if a subsequent deviation from the originally
articulated description is sufficiently grave to thwart the
environmental impact report’s ability to serve its communicative
function, and because an agency’s failure to proceed in a manner
required by law is prejudicial “if the failure to include relevant
information precludes” “informed public comment” and “informed
decisionmaking” (Southwest Regional, supra, 76 Cal.App.5th at
pp. 1172-1183; Washoe Meadows, supra, 17 Cal.App.5th at p.
290), a finding that a project description is unstable satisfies the
requirement for writ relief that the public agency’s abuse of
discretion be prejudicial. The writ petitioner need not also show
that starting over with an accurate project description would lead
to a different outcome. (stopthemillennium, supra, 39
Cal.App.5th at p. 20.)
3. The duty under CEQA to recirculate for further
public comment
As a project moves through CEQA’s review process, the
public agency necessarily acquires new information and may opt
to alter the project in light of that information. Even if these
alterations do not destabilize the project’s definition, do they
obligate the agency to recirculate the environmental impact
report containing the new information for further public
comment? It is well settled that “recirculation is not required
simply because new information is added.” (South County
Citizens for Smart Growth v. County of Nevada (2013) 221
Cal.App.4th 316, 328; Western Placer, supra, 144 Cal.App.4th at
18
p. 899 [“no provision in CEQA . . . requires all changes made to a
project . . . be included in the [environmental impact report
through recirculation]”]; Southwest Regional, supra, 76
Cal.App.5th at p. 1184 [same].) Recirculation is the “exception,
rather than the general rule” (Laurel Heights Improvement Assn.
v. Regents of University of California (1993) 6 Cal.4th 1112, 1132
(Laurel Heights); East Oakland Stadium Alliance v. City of
Oakland (2023) 89 Cal.App.5th 1226, 1265 (East Oakland);
Southwest Regional, at p. 1184), and for good reason: If
recirculation were required every time new information was
considered or incorporated into a project, then the likely result is
an endless feedback loop of circulation-new information-
recirculation. CEQA was meant to foster informed consideration
of environmental consequences, not total paralysis. (Laurel
Heights, at p. 1132 [“the Legislature did not intend to promote
endless rounds of revision and recirculation of [environmental
impact reports]”].)
CEQA nevertheless recognizes that recirculation is
sometimes warranted. Specifically, CEQA obligates a public
agency to recirculate the pertinent portions of an environmental
impact report for further public comment when, prior to
certification of the report,6 “significant new information is added
to an environmental impact report.” (§ 21092.1; Chaparral
Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1146-
1147 (Chaparral Greens); Cal. Code Regs., tit. 14, § 15088.5,
subds. (a), (c).) For these purposes, “information” is defined
6 If the public agency has already certified the environmental
impact report, whether a new report must be prepared is
governed by different provisions of CEQA. (§ 21166; accord,
Laurel Heights, supra, 6 Cal.4th at pp. 1125-1126.)
19
broadly to include “changes in the project or environmental
setting as well as additional data or other information.” (Cal.
Code Regs., tit. 14, § 15088.5, subd. (a).) As a result, new
information possibly justifying recirculation can arise from
information obtained through public comment or, as pertinent
here, the public agency’s adoption of a modified version of the
project. (E.g., Southwest Regional, supra, 76 Cal.App.5th at pp.
1181-1182 [entertaining recirculation argument where public
agency adopted a modified version of the project].)
Our Supreme Court defined when new information is
“significant” for purposes of pre-certification recirculation in
Laurel Heights, supra, 6 Cal.4th 1112. Specifically, the court
noted that new information not in a prior environmental impact
report is “significant” when that information “discloses: (1) a new
substantial environmental impact resulting from the project or
from a new mitigation measure proposed to be implemented . . . ;
(2) a substantial increase in the severity of an environmental
impact unless mitigation measures are adopted that reduce the
impact to a level of insignificance . . . ; (3) a feasible project
alternative or mitigation measure that clearly would lessen the
environmental impacts of the project, but which the project’s
proponents decline to adopt . . . ; or (4) that the draft
[environmental impact report] was so fundamentally and
basically inadequate and conclusory in nature that public
comment on the draft was in effect meaningless.” (Laurel
Heights, at pp. 1129-1130.) The CEQA guidelines formally
adopted the definition articulated by the Supreme Court. (Cal.
Code Regs., tit. 14, § 15088.5, subd. (a); Laurel Heights, at p.
1130, fn. 15 [language in definition under consideration by
administrative agency at time of Supreme Court’s decision].)
20
Upon closer inspection, this definition deems new
information to be “significant” only if that information (1) is
significantly different than what was previously circulated, and
(2) tends to show that the project will have a more adverse
environmental impact than stated or implied in the previously
circulated reports. (Laurel Heights, supra, 6 Cal.4th at pp. 1120,
1129-1130; East Oakland, supra, 89 Cal.App.5th at p. 1265; Cal.
Code Regs., tit. 14, § 15088.5, subd. (a).) Information that
“‘merely clarifies or amplifies [citation] or makes insignificant
modifications’” does not warrant recirculation. (Laurel Heights,
at p. 1128, quoting Sutter Sensible Planning, Inc. v. Board of
Supervisors (1981) 122 Cal.App.3d 813, 822-823; Cal. Code Regs.,
tit. 14, § 15088.5, subd. (b); cf. Southwest Regional, supra, 76
Cal.App.5th at p. 1185 [information that is “substantially
similar” to previously disclosed information does not warrant
recirculation].) All of the examples listed in Laurel Heights
involve the omission of new information tending to indicate a
worse environmental impact, including the example of an
“inadequate and conclusory” draft in Mountain Lion Coalition v.
Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051-1053,
where the previously circulated report completely omitted any
analysis of the cumulative effect of the project on the
environment.
Although a public agency’s failure to recirculate pertinent
portions of an environmental impact report constitutes a failure
to proceed in the manner required by law when there is
“significant new information” that satisfies the above-stated
definition, the threshold determination of whether new
information qualifies as “significant” is for the public agency to
make in the first instance; courts review the agency’s
21
determination in this regard under the deferential substantial
evidence standard. (Laurel Heights, supra, 6 Cal.4th at p. 1135;
Southwest Regional, supra, 76 Cal.App.5th at p. 1184; Chapparal
Greens, supra, 50 Cal.App.4th at p. 1147.)
B. Analysis
As the pertinent law indicates, a public agency’s approval
of a project that deviates from how the project was described in
previously circulated environmental impact reports can
potentially implicate the CEQA rule requiring the project
description in the report be “stable” and the CEQA rule requiring
recirculation of a report. (Accord, Save Our Capitol!, supra, 87
Cal.App.5th at p. 674 [noting the close relationship between these
two doctrines]; Southwest Regional, supra, 76 Cal.App.5th at pp.
1181-1182 [same].) Although both CEQA rules are implicated in
this scenario, it is critical to determine which applies because
they call for vastly different remedies: A public agency’s adoption
of a modified project that retroactively destabilizes the project’s
description by itself qualifies as a “prejudicial abuse of discretion”
that ostensibly obligates the public agency to start over with the
CEQA review process, while the adoption of a modified project
does not call for recirculation unless substantial evidence fails to
support the agency’s implied finding that the modification does
not qualify as “significant new information.”
Thus, CEQA effectively erects a three-tiered system when
it comes to a public agency’s adoption of a modified project. First,
the modification can be so fundamentally significant that it calls
into question—and hence destabilizes—the description of the
project itself, thereby warranting a reboot of the CEQA review
process. Second, the modification can be not so significant as to
destabilize the project’s description, but significant enough to
22
constitute “significant new information,” thereby warranting
recirculation for further public comment on the new information.
Third and lastly, the modification can be insignificant, in which
case no further action need be taken.
Here, because Gooden has abandoned any claim that the
Board’s action warrants recirculation, the sole question before us
is whether the Board’s action in approving the project to update
the North Area Plan and Community Standards District as
amended to include a ban on all new vineyards renders the
description of the project set forth in the previously circulated
environmental impact reports unstable.
We independently conclude that it does not.
In this case, the project is the revision of the North Area
Plan as well as the Community Standards District in their
entirety, along with a corresponding overhaul to the County Code
provisions governing the North Area. The portion of the North
Area Plan and Community Standards District devoted to
agricultural land uses is very small: It encompasses one-half of
one page of the 91-page Plan and one small subsection of the
innumerable-section standards in the Community Standards
District. What is more, the topic of agricultural land use—and,
indeed, the regulation of vineyards—within the North Area Plan
was unmistakably part of the “project.” In this context, the
Board’s decision to adopt a total ban on new vineyards in the area
rather than to adopt the previously proposed plan to heavily
regulate all vineyards does not alter the “‘nature of the project’”
or any of its “‘main features.’” (Tiburon, supra, 78 Cal.App.5th at
pp. 738-739, quoting South of Market, supra, 33 Cal.App.5th at p.
332 and Dry Creek Citizens, supra, 70 Cal.App.4th at p. 28; Save
Our Capitol!, supra, 87 Cal.App.5th at p. 674; Southwest
23
Regional, supra, 76 Cal.App.5th at p. 1173; Treasure Island,
supra, 227 Cal.App.4th at pp. 1052, 1055; Communities, supra,184 Cal.App.4th at p. 84.)
The propriety of this result is confirmed when comparing
the Board’s deviation from the project described in the prior
reports in this case to the scenarios where courts have found
project descriptions to be unstable. This is not a case where the
reports did not describe the project at all. This is not a case
where the description of the project was too amorphous. And this
is not a case where the prior description of the project is
inconsistent with the adopted version in a manner that alters the
nature of the project or its main elements. To be sure, the
treatment of new vineyards under the North Area Plan and
Community Standards District changed, but, as noted above, this
change was but a small part of a much more comprehensive
revision of the North Area Plan and Community Standards
District as a whole; this change did not alter the nature of that
project or any of its main elements. To be sure, this change was
significant to potential new vintners, but if that were sufficient to
destabilize a project’s description, then any and every deviation
from a prior project description would be grounds for hitting the
reset button under CEQA; as noted above, that is not the law.
Gooden responds with what boils down to two arguments.
First, he points to Save Our Capitol!, supra, 87 Cal.App.5th 655as directly on point. It is not. The court in Save Our Capitol!
took pains to explain that, where the project itself was a remodel
to a historical capitol building complex, the change in the
aesthetic design of the complex was integral to the status of the
complex as a historical resource. (Save Our Capitol!, at pp. 675-
676.) By contrast, the shift from heavy regulation of new
24
vineyards to an outright ban—when current use for vineyards
accounted for less than one percent of the North Area’s total
acreage—was not integral to the project’s updates to the land use
policies affecting the entire North Area. Second, Gooden asserts
that the shift to a total ban is significant because “most
agriculture in the North Area currently consists of vineyards.”
This may be true, but it does not eclipse the fact that the total
amount of acreage dedicated to this use is miniscule or, more to
the point, the fact that agricultural land use was a small part of
the project of revising the entire North Area Plan.7
II. Government Code Section 65857
Gooden argues that the Board violated Government Code
section 65857 when its adoption of an ordinance banning new
vineyards deviated from the recommendation of the Department
for Regional Planning without giving the Department an
opportunity to provide its input. This statute provides that “any
modification of [a] proposed ordinance or amendment by [a]
legislative body not previously considered by the planning
commission during its hearing[] shall first be referred to the
planning commission for report and recommendation.” (Gov.
Code, § 65857; accord, id., § 65356, subd. (a) [adopting the same
rule when a legislative body makes modifications to its general
plan].) We will assume that the Board violated Government Code
section 65857 when it adopted the vineyard ban without first
remanding the matter back to the Department for Regional
Planning for its report and recommendation on a ban.
7 In light of our conclusion, we need not address the County’s
alternative arguments for affirmance, some of which are
impenetrable.
25
We nonetheless must still reject Gooden’s argument
because he failed to demonstrate that this procedural misstep
was prejudicial. Government Code section 65010 requires that
the actions of public agencies may not be invalidated “unless the
court finds that the error was prejudicial” and “that a different
result would have been probable if the error had not occurred.”
(Gov. Code, § 65010, subd. (b).) The burden of showing a
different outcome is probable rests with the party challenging the
agency’s action. (Rialto Citizens for Responsible Growth v. City of
Rialto (2012) 208 Cal.App.4th 899, 920; Roberson v. City of Rialto
(2014) 226 Cal.App.4th 1499, 1508.) Here, Gooden offers nothing
but speculation that the Board would adopt a different ordinance
if the Department of Regional Planning had weighed in on a ban
of new vineyards. Indeed, such a different outcome is unlikely
because, regardless of any updated recommendation, the Board
already had before it public comments favoring and disfavoring a
ban, and ultimately decided a ban was in the public interest.
Gooden responds that a different outcome is likely because the
Department of Regional Planning opted not to recommend a ban
in the first instance, but this fact alone cannot be sufficient to
constitute prejudice because it is necessarily true in every case
where the decisionmaker deviates from a planning commission’s
prior recommendation; we decline to read the requirement of a
prejudice showing mandated by section 65010 out of the
Government Code.
DISPOSITION
The judgment is affirmed. The County and the Board are
entitled to costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.
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______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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